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Volume 70, Issue 5


Life, Liberty, and Trade Secrets

Intellectual Property in the Criminal Justice System
by  Rebecca Wexler

The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse…


Innovation and the Firm

A New Synthesis
by  Peter Lee

Recent scholarship highlights the prevalence in high-technology industries of vertical disintegration, in which separate entities along a value chain transfer knowledge- intensive assets between them. Patents play a critical role in this process by lowering the cost of transactions between “upstream” technology generators and “downstream” parties that further develop technologies, thus promoting vertical disintegration. This…


The Measure of a Metric

The Debate over Quantifying Partisan Gerrymandering
by  Nicholas O. Stephanopoulos & Eric M. McGhee

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric—the efficiency gap— that we previously developed. In this Essay, we reframe the debate by presenting a series of criteria that can…


A Cruel and Unusual Way to Regulate the Homeless

Extending the Status Crimes Doctrine to Anti-homeless Ordinances
by  Hannah Kieschnick

In the face of affordable housing crises and increasingly visible homeless populations, many cities have enacted anti-homeless ordinances that regulate public behavior largely performed by homeless individuals. These ordinances prohibit necessary and life-sustaining behavior, such as sleeping and camping in public, for those without housing in cities that lack sufficient shelter space. Although the U.S.…


Celebrating Bob Gordon’s Taming the Past

by  Ariela J. Gross & Susanna L. Blumenthal

Bob Gordon’s most famous article, Critical Legal Histories, published in the pages of the Stanford Law Review in 1984, was an instant classic, and it is not too much of an exaggeration to say that it redefined the field of legal history and set the agenda for two generations of legal historians. The article is…


How Not to Train Your Dragon, or Living Dangerously in the Law

by  Susanna L. Blumenthal

Taming the Past and the image that graces its cover are meant to call to mind the cave-dwelling dragon of which Oliver Wendell Holmes spoke in his famously iconoclastic 1897 vocational address The Path of the Law. While the speech is most commonly associated with “our friend the bad man” and the prediction theory of…


Bob Gordon’s Critical Historicism and the Pursuit of Justice

by  Ariela J. Gross

My initial encounter with critical legal historicism was as a graduate student in history at Stanford trying to decide whether to stay in graduate school, teach, and do research, or go to law school to pursue politics. During my first year, I lurked around the law school, attending my first legal history workshop. It was…


Unleashing the Past

by  Roy Kreitner

As John Witt and Sarah Gordon tell us in their foreword to Taming the Past, Bob Gordon’s lifetime of work offers “a sharp and uncompromising theoretical apparatus.” The chapters in the third part of Taming the Past in particular live up to this promise: They point to legal history’s potential and lay out a plan…


Debating the Past’s Authority in Alabama

by  Sara Mayeux

In 2015, the city council of Birmingham, Alabama enacted an ordinance establishing a local minimum wage of $10.10 an hour—a significant raise for the city’s low-income workers from the federal floor of $7.25. The ordinance proved short-lived. Within months, the Alabama legislature had passed and the governor signed statewide preemption legislation nullifying all local wage…


Everything Is Contingent

A Comment on Bob Gordon’s Taming the Past
by  Kunal M. Parker

In the introduction to Taming the Past, Bob Gordon invokes a well-known passage in Oliver Wendell Holmes’s 1897 essay The Path of the Law in which Holmes, likening law to a dragon, argues that history serves either to kill law or to tame it. But how exactly does history do this? * Professor of Law…


Reading Early Colonial Legal History as Bob Gordon’s Student

by  Claire Priest

Commenting on Bob Gordon’s early work is a humbling experience that might compare to a composer commenting on early Beethoven or a painter on early Michelangelo. The eloquence of Gordon’s writing is unparalleled. It is an absolute delight to read and enjoy every turn of phrase. Gordon perfectly describes what others can only grasp at.…


The Diversity of the Common Law Tradition

by  David M. Rabban

Bob Gordon’s pathbreaking essay The Common Law Tradition in American Legal Historiography, initially published in 1975, was the first significant overview of the history of the field of U.S. legal history. In it, he defines the common law tradition as “the fictional continuity that each generation of common lawyers imposes, in its own fashion and…


Critical Legal Histories and Law’s (In)determinacy

by  Reva B. Siegel

Over the years, I have had the delight, adventure, and nourishment of having Bob Gordon as friend, colleague, and co-teacher. But for this Reflection, I was moved to excavate Gordon’s role in my life before I ever met him, in those years when a first encounter with Critical Legal Histories helped me find my voice…

Final Remarks

For Bob Gordon

by  John Fabian Witt

I’m thrilled to be able to be part of this celebration of the man I think we should all start calling the Notorious RWG. I first encountered Bob Gordon—or rather, I first encountered his work—in 1994. I was on a gap year between college and law school, working in the appeals bureau of Robert Morgenthau’s…